Citation Nr: 0110821
Decision Date: 04/13/01 Archive Date: 04/23/01
DOCKET NO. 96-27 304 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to non-service connected pension benefits.
ATTORNEY FOR THE BOARD
J. L. Tiedeman, Associate Counsel
REMAND
The appellant served on active duty from November 1974 to
December 1977.
The instant appeal arose from a rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO), in
San Juan, Puerto Rico, which denied a claim for non-service
connected pension benefits.
In denying entitlement to non-service connected pension
benefits to the veteran, the RO assigned a noncompensable
rating for nonservice-connected schizophrenia under 38 C.F.R.
§ 4.104, Diagnostic Code 9204 (2000) and a noncompensable
rating for a nonservice-connected left ankle disorder under
38 U.S.C.A. § 4.104, Diagnostic Code 5284 (2000).
In this case, the Board notes that there has been a
significant change in the law during the pendency of this
appeal. On November 9, 2000, the President signed into law
the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000). Among other things, this law
eliminates the concept of a well-grounded claim, redefines
the obligations of the Department of Veterans Affairs (VA)
with respect to the duty to assist, and supercedes the
decision of the United States Court of Appeals for Veterans
Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn
sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6,
2000) (per curiam order), which had held that VA cannot
assist in the development of a claim that is not well
grounded. This change in the law is applicable to all claims
filed on or after the date of enactment of the Veterans
Claims Assistance Act of 2000, or filed before the date of
enactment and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart
(a), 114 Stat. 2096, ___ (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, ___ (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
In the veteran's February 1993 claim (VA Form 21-526) he
reported that he had received private treatment from Dr.
Bocanegra for psychiatric disability from 1991 to the
"present." However, there is only one medical report from
Dr. Bocanegra, dated in February 1993, associated with the
claims file. There is also on file an October 1995 report
from Dr. Ferando Coya. Any additional treatment records from
Dr. Bocanegra and Dr. Coya, and any other private clinical
sources, should be obtained and associated with the claims
file. Any such records that are written in Spanish must be
translated into English.
Finally, the Board notes that the record reveals that the
veteran was last afforded a VA examination to assess the
severity of his service-connected disorders in October 1995,
at which time it was noted that he had last undergone VA
hospitalization in April 1994. An April 1994 VA outpatient
treatment record indicates that he had undergone two prior
periods of VA hospitalization; however none of these records
are on file.
The Board concludes that in order to comply with the VA's
duty to assist and because the evidence of record with regard
to the issue on appeal is stale, the veteran is entitled to
more current VA examinations to ascertain the current
severity of the his pensionable disabilities.
Accordingly, this case is REMANDED for the following:
1. The RO should contact the veteran to
determine the names, addresses, and dates of
treatment of any physicians, hospitals, or
treatment centers (private, VA or military) who
have provided him with relevant psychiatric
treatment not already associated with the claims
file, including all treatment obtained from U.
Bocanegra, M.D., beginning in 1991 and all
treatment records from Dr. Coya. After securing
the necessary releases, the RO should make all
reasonable efforts to obtain medical records
identified by the veteran. To the extent there
is an attempt to obtain records that is
unsuccessful, the claims folder should contain
documentation of the attempts made. The veteran
and his representative should also be informed of
the negative results. 38 C.F.R. § 3.159.
2. The RO should ensure that all reports of past
periods of VA hospitalization are on file and
should obtain all VA outpatient treatment
records.
3. Thereafter, the veteran should be scheduled
for a VA psychiatric examination. The examiner
should, based on sound medical judgment and all
available medical records, and any testing deemed
appropriate, determine the veteran's current
psychiatric status, including any diagnosis(es)
of any current psychiatric disorder(s). All
indicated tests should be accomplished and all
clinical findings should be reported in detail.
The report of examination should contain a
detailed account of all manifestations of all
disability(ies) that are not the result of
willful misconduct that are found to be present.
If there are found to be multiple psychiatric
disorders, the examiner should reconcile the
diagnoses and should specify which symptoms are
associated with each of the disorder(s). If
certain symptomatology cannot be disassociated
from one disorder or the other, it should be so
specified. The examiner should also comment on
the extent to which the service-connected
disability impairs the veteran's occupational and
social functioning.
The claims folder and a copy of the current
psychiatric rating criteria should be provided to
the examiner for review.
After reviewing the claims folder and examining
the veteran, a Global Assessment of Functioning
(GAF) score should also be determined, and a full
explanation of its meaning should be set out.
4. The veteran should be afforded a VA
orthopedic examination to determine the severity
of the veteran left ankle disorder. The claims
folder and a copy of this remand should be made
available to and reviewed by the examiner prior
to conduction and completion of the examination.
The examination should include any tests or
studies deemed necessary for an accurate
assessment, and complete active and passive range
of motion testing of the left ankle.
The examiner should specify any functional loss
due to pain or weakness, and document all
objective evidence of those symptoms. See 38
C.F.R. §§ 4.40, 4.45, 4.59 (2000); DeLuca v.
Brown, 8 Vet. App. 202 (1995).
In addition, the examiner should provide an
opinion on the degree of any functional loss
likely to result from a flare-up of symptoms or
on extended use and to not limit an evaluation of
disability to a point in time when the symptoms
are quiescent. The examiner should also
document, to the extent possible, the frequency
and duration of exacerbations of symptoms.
5. Following completion of the above actions,
the RO must review the claims folder and ensure
that all of the foregoing development have been
conducted and completed in full. If any
development is incomplete, appropriate corrective
action is to be implemented. See Stegall v.
West, 11 Vet. App. 268 (1998) (compliance of a
Court or Board directive is neither optional nor
discretionary). Where the remand orders of the
Board or the Court are not complied with, an
error exists as a matter of law for failure to
ensure compliance.
Specific attention is directed to the examination
report. If the examination report does not
include fully detailed descriptions of pathology
and all test reports, special studies or adequate
responses to the specific opinions requested, the
report must be returned for corrective action.
38 C.F.R. § 4.2 (2000) (if the report does not
contain sufficient detail, the rating board must
return the report as inadequate for evaluation
purposes).
6. The RO must then review the claims file and
ensure that all notification and development
action required by the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475 is completed.
In particular, the RO should ensure that the new
notification requirements and development
procedures contained in sections 3 and 4 of the
Act (to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107) are fully
complied with and satisfied. For further
guidance on the processing of this case in light
of the changes in the law, the RO should refer to
VBA Fast Letter 00-87 (November 17, 2000), as
well as any pertinent formal or informal guidance
that is subsequently provided by the Department,
including, among others things, final regulations
and General Counsel precedent opinions. Any
binding and pertinent court decisions that are
subsequently issued also should be considered.
7. If the benefit sought on appeal remains
denied, the veteran should be provided with a
supplemental statement of the case (SSOC). The
SSOC must contain notice of all relevant actions
taken on the claim for benefits, to include a
summary of the evidence and applicable law and
regulations considered pertinent to the issue
currently on appeal. An appropriate period of
time should be allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified; however, the veteran is advised
that failure to cooperate by reporting for scheduled
examinations may result in the denial of the higher rating
claim. 38 C.F.R. § 3.655 (2000).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
JOHN FUSSELL
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).